EFFECTIVE MAY 3, 1982
Rule 1. Authority and Scope. —(a) These rules are promulgated under authority of Rule 45 of the Tennessee Rules of Appellate Procedure and T.C.A. 16-5-106(b). They supersede all previous rules of this court.
(b) Procedure in this court is governed by the Tennessee Rules of Appellate Procedure, by the Rules of the Supreme Court of Tennessee applicable to criminal appeals, and by these rules.
Rule 2. Suspension of Rules. —For good cause shown, this court may suspend the requirements of these rules.
Rule 3. Terms. —This court will sit without reference to formal terms and shall be deemed always open for the conduct of business.
Rule 4. Sessions. – Sessions shall be held at such times as the court directs. Unless otherwise ordered, the court will convene at 9:00 a.m. each day upon which cases are set for argument. Unless otherwise ordered, cases set for argument will be heard in the order in which they appear on the calendar [Amended by order filed January 10, 2005.]
(b) Unless otherwise ordered, the court will convene at 9:00 a.m. each day upon which cases are set for argument. Unless otherwise ordered, cases set for argument will be heard in the order in which they appear on the calendar. [Amended by order entered May 3, 1996, effective September 1, 1996.]
Rule 5. Panels. —Unless otherwise ordered, the court will sit in panels of three judges as assigned by the presiding judge. The concurrence of a majority of the judges so sitting shall be necessary to constitute a decision of the court.
Rule 6. Settings. —The court will, in its discretion, from time to time, set all cases for submission and the order in which they will be heard.
Rule 7. Motions and Orders.Motions in this Court shall be in conformity with Rule 22, T.R.A.P. In addition, the proponent of a motion for an extension of time pursuant to Rule 21(b), T.R.A.P., shall submit a proposed order for the court's consideration. The proposed order shall comply with the standard format for appellate court orders prescribed by Rule 35, Rules of the Supreme Court of the State of Tennessee. The proponent of a motion other than a motion for an extension of time is not required to submit a proposed order. [Amended by order filed November 2, 2001.]
Rule 8. Extensions of Time, Continuances and Waivers of Oral Argument. —(a) Policy. —Delays in the final disposition of criminal appeals are a matter of increasing and justified concern. The policy of this court is to achieve prompt preparation and disposition of criminal cases. Accordingly, motions which delay the disposition of an appeal in this court are looked upon with disfavor.
(b) Extensions of Time. —The court will grant extensions of time in compliance with Rule 21(b), T.R.A.P. Requests for an extension of time shall be by motion in conformity with Rule 22, T.R.A.P., and shall be accompanied by an affidavit setting forth the reasons for the extension sought. The motion shall also state whether or not the opposing party consents to the extension of time.
(c) No Brief or Motion may be Filed with the Clerks of this Court after the Expiration of the Time for Filing as Provided in the Rules. —Such documents shall be lodged with the clerk with a written motion for permission to file the brief or motion after the expiration of the applicable time period. The motion to late-file should show good cause for suspension of the Rules in accordance with Rule 2, T.R.A.P. and Rule 2 of these Rules.
(d) Continuances of Oral Argument. —When a case is set for submission, it will not be continued or reset to the next docket except upon motion in conformity with Rule 22, T.R.A.P. The motion must state whether or not the opposing party consents to the continuance. Motions for continuance of oral argument which are filed after the last Thursday before the case is set for oral argument will only be granted under exigent circumstances.
(e) Waiver of Oral Argument. —Counsel may waive oral argument after it has been requested by notifying the Clerk of this Court except where the request is made after the last Thursday before the case is set for submission to the Court. In such cases, counsel must file a written motion in conformity with Rule 22, T.R.A.P., which shall be accompanied by an affidavit stating that opposing counsel is aware of the waiver and has no objection. If opposing counsel does not agree to the waiver, the written motion will only be granted upon a showing of good cause. Moreover, in the event that counsel fails to comply with the requirements set forth in this rule, he or she may be subject to costs incurred by opposing counsel due to the waiver of oral argument.
[As amended by order filed November 16, 1995, effective January 1, 1996.]
Rule 9. Matters to Next Session. —All motions and other matters filed in this court and not disposed of at the end of the session shall be automatically continued to the next session of the court.
Rule 10. Inadequate Briefs. —(a) If a brief does not substantially conform to the requirements of the Tennessee Rules of Appellate Procedure, the court may order the same stricken and direct the filing, within a fixed time, of a new brief, and it may impose costs or order payment by the offending attorney or party of costs in such amount as the circumstances require.
(b) Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.
Rule 11. Voluntary Dismissal. —A motion or agreement by a criminal defendant for a voluntary dismissal of his appeal shall comply with Rule 15, T.R.A.P. In addition, a signed statement of the defendant which shows that he has been advised of his rights with regard to appeal and expressly waives said rights shall accompany the motion or agreement.
Rule 12. Duties of Counsel with Regard to Appeal. —Counsel who files a notice of appeal is responsible for representing the defendant on appeal and he shall be allowed to withdraw as counsel of record only for good cause shown and if application is made to this court when such counsel is not delinquent in his duties.
Rule 13. Dismissals for Failure to Prosecute. —The dismissal of an appeal for want of prosecution shall not limit the authority of this court, in an appropriate case, to take disciplinary action against defaulting counsel.
Rule 14. Time for Argument. —Each side shall be allowed a maximum of 20 minutes for argument, unless otherwise ordered by the court. The appellant may reserve rebuttal time by notifying the court before argument begins.
Rule 15. Stay Orders. —Orders for a stay of the mandate of this court pending certiorari to the United States Supreme Court shall not routinely be granted unless there is a showing of extraordinary need or a demonstration that a substantial question is to be presented to the United States Supreme Court. Petitions for stay orders will be presented to the author of the opinion of this court and will be granted only on the concurrence of the majority of the panel which considered the case.
Rule 16. Contempt for Willful Noncompliance with Rules. —For a willful noncompliance with any material and substantive requirement of these rules, an attorney, trial court clerk, court reporter, or other officer of the court may be held in contempt of court by this court after reasonable notice.
Rule 17. Disrespect of Courts. —No argument or motion filed or made in this court shall contain language showing disrespect or contempt for any court of Tennessee.
Rule 18. Admission of Attorneys. —All attorneys licensed to practice law in this state are automatically admitted to practice as members of the bar of this court and no formal introduction to this court is required.
Rule 19. Publication of Opinions —Citation of Unpublished Opinions. —1.(a) No opinion of the Court of Criminal Appeals shall be published unless it meets one or more of the following standards:
(1) the opinion establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a set of facts significantly different from those stated in other published opinions;
(2) the opinion involves a legal issue of continuing public interest;
(3) the opinion criticizes, with reasons given, an existing rule of law;
(4) the opinion resolves an apparent conflict of authority whether or not the earlier opinion or opinions are reported;
(5) the opinion updates, clarifies or distinguishes a principle of law; or
(6) the opinion makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.
(b) No opinion shall be published if the Supreme Court of Tennessee grants an application for permission to appeal or concurs only in the result reached or otherwise directs that the opinion should not be published.
(c) An opinion of the Court that meets one or more of the standards in subsection (a), and that is not otherwise barred from publication by any of the criteria in subsection (b), shall be published only if a majority of the Court votes affirmatively in favor of publication.
2.(a) No opinion shall be recommended for publication until the time has expired for the filing of an application for permission to appeal. The author of an opinion who recommends it for publication shall deliver a copy of the opinion to each member of the Court, along with a letter stating which of the standards of subsection 1.(a) are met. Within twenty (20) days of the receipt of an opinion recommended for publication, each member who agrees that the opinion should be published shall notify the presiding judge in writing. The failure of a member to respond shall be construed as a vote against publication of the opinion.
(b) The author of an opinion may recommend for publication any part of an opinion meeting one or more of the standards for publication specified in subsection 1.(a). The published part of the opinion shall indicate which part is unpublished. All factual and legal material that aids in the application or interpretation of the published part shall be in the published part. The author of an opinion may make minor editorial changes, including corrections in spelling, punctuation, syntax, or citations after an opinion has been filed.
(c) When the opinion is forwarded for publication the presiding judge shall indicate on its face the date the opinion was filed and shall also show whether permission to appeal was sought and, if sought, the date of its denial.
3. A separate concurring or dissenting opinion shall be published with the majority opinion if the majority of the Court vote affirmatively for publication of both opinions and the author of such separate opinion does not object in writing to the presiding judge within the time allowed for voting. A copy of the separate opinion shall be delivered to each member of the Court by the author of the majority opinion at the same time as the letter recommending publication of the majority opinion. The voting procedure shall be the same as provided in subsection 2. for the majority opinion. Absent such opinion being published with the majority opinion, the publication shall note only the fact of concurrence or dissent.
4. Unpublished opinions of the Court of Criminal Appeals may not be cited in any court unless a copy is furnished to the Court and to adversary counsel. The title page of any unpublished intermediate appellate court opinion cited to the Court shall contain either a notation that no appeal to the Tennessee Supreme Court has been filed or a notation of the date and manner in which the Tennessee Supreme Court acted upon the application for permission to appeal. Where appropriate, this shall include a notation that an appeal has been applied for but has not been acted upon by the Tennessee Supreme Court. [As adopted by order entered September 1, 1988; amended by order filed February 1, 1993; and by order filed June 2, 1997.]
Rule 20. Memorandum Opinion. — The Court, with the concurrence of all judges participating in the case, when an opinion would have no precedential value, may affirm the judgment or action of the trial court by memorandum opinion rather than by formal opinion, when:
(1)(a) The judgment is rendered or the action is taken in a proceeding
before the trial judge without a jury, and such judgment or action is not a
determination of guilt, and the evidence does not preponderate against the
finding of the trial judge, or
(b) The judgment rendered or action taken
relates to a finding of guilt before the trial judge without a jury, or with a
jury, and the evidence is sufficient to support the finding by the trier of
fact of guilt beyond a reasonable doubt, and
(2) No error of law requiring a reversal of the judgment or action is apparent on the record. The opinion in such case shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on in any unrelated case unless to establish a split of authority. [As adopted by order filed December 15, 2003.]
Rule 21. Capital Cases and Notice of Appeal. —In addition to the content requirements for a Notice of Appeal as set forth in Rule 3(f), Tenn. R. App. P., the appellant shall prominently state on the notice, below the docket number, the phrase “CAPITAL CASE APPEAL.”This requirement shall apply to both direct appeal and post-conviction capital cases. [Adopted by order filed April 22, 1997.]
Rule 22. Frivolous Appeals: Withdrawal of Appointed Counsel. —If, on direct appeal to this court, appointed counsel for an indigent defendant concludes, after a conscientious examination of the entire record and the applicable law, that the appeal is frivolous under Anders v. California, 386 U.S. 738 (1967), and that continued representation by counsel would violate the Code of Professional Responsibility, Rule 8, Rules of the Supreme Court, counsel may move the court in writing to permit withdrawal from further representation of the indigent defendant.
(A) Counsel's role as an advocate requires that counsel support the appeal to the best of counsel's ability. Counsel must function zealously and resolve all doubts and ambiguous legal questions in favor of the defendant. Counsel should not seek to withdraw from a case merely because he or she determines that the appeal lacks merit. Counsel should serve as both advocate and adviser to the client.
(B) A “frivolous”appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit that there is little, if any, prospect that it can ever succeed. To be frivolous, an appeal must be so clearly untenable or manifestly insufficient that its character may be determined by a bare inspection of the record, without argument or research. An appeal is not frivolous when a substantial justiciable question can be identified from the whole record or any part of it, even though such question is unlikely to be decided other than as decided by the lower court.
(C) If counsel determines that an appeal is frivolous, counsel may file a motion to withdraw with this court. The motion must be accompanied by (1) a Rule 22 Brief in Support of motion to withdraw and (2) a complete transcript of all relevant proceedings. The mere statement by counsel that there were no errors of law below or that the appeal is without merit does not satisfy the requirements set forth herein. The Rule 22 Brief must contain an argument section consisting of the following:
(1) a list of all rulings adverse to the defendant made by the trial court on any objections, motions or requests made by either party, with an explanation as to why each adverse ruling is not a meritorious ground for appeal;
(2) a discussion of the evidence introduced against the defendant;
(3) a recitation of the trial court's rulings;
(4) a briefing of any issue that might arguably support an appeal;
(5) references to pertinent testimony and citations to the record; and
(6) citations to legal authority supporting counsel's analysis and conclusions.
(D) Counsel shall furnish a copy of the motion to withdraw and Rule 22 Brief to the indigent defendant by certified mail, return receipt requested. The return receipt shall be filed with the clerk of this court.
(E) The indigent defendant shall, upon receipt of the motion to withdraw and Rule 22 Brief, be afforded thirty (30) days to submit a responsive brief raising any claims of error or additional points or supplementing any existing issues presented in counsel's Rule 22 Brief.
(F) After a full examination of the entire record, this court, through a motions panel, will proceed to determine (1) whether counsel has diligently searched the record for arguable claims and (2) whether the appeal is wholly frivolous. If it so finds, the court shall resolve the appeal in accordance with Rule 20 of the Tennessee Court of Criminal Appeals and grant counsel's motion to withdraw. The court shall notify the defendant of the right to file a pro se Application for Permission to Appeal with the clerk of the Tennessee Supreme Court within sixty (60) days after entry of final judgment. If, however, this court finds there to be legal points arguable on their merits and that the appeal is not frivolous, the court shall, at its discretion, either direct moving counsel to submit an advocate's brief on the merits or be allowed leave to withdraw. [Amended by order filed December 15, 2003.]
(G) Failure to strictly comply with the requirements of this Rule will result in dismissal of the motion to withdraw. No motions to amend, modify or supplement the motion to withdraw or Rule 22 Brief so as to conform with the requirements of subsection (C) of this Rule will be granted.
(H) The filing of a motion to withdraw pursuant to this Rule, when accompanied by the required brief, shall suspend further proceedings on the appeal until this court rules on the motion to withdraw.
(I) The Attorney General is not required to file a brief in response to a Rule 22 Brief, unless ordered to do so by the court. [Adopted by order filed January 26, 2001.]